Memorandum.
The Government of the United States, having examined a report made on
March 2, 1892, by the American consul at Apia to the Department of
State, a letter from the chief justice of Samoa to the Secretary of
State, dated February 29, 1892, and a letter to the Secretary of
State of the same date, from the U. S. land commissioner, all
relating to a difference between the chief justice of Samoa and the
land commission as to the interpretation of section 6 of Article iv of the Berlin general act of 1889,
which reads as follows:
“Section 6. All disputed claims to land in
Samoa shall be reported by the commission to the court, together
with all the evidence affecting their validity; and the court shall
make final decision thereon in writing, which shall be entered on
its record.
“Undisputed claims and such as shall be decided valid by the
unanimous voice of the commission shall be confirmed by the court in
proper form in writing, and be entered of record,”
is of opinion that an instruction should be sent by each of the
treaty powers to its consular representative at Apia, directing him
to inform the chief justice that, in the opinion of the consul’s
government, the publication of the proclamation issued by the chief
justice on February 23, 1892, was ill advised, as tending to
unnecessarily belittle the land commission in public estimation, and
to possibly interfere with the effectiveness of its Work, besides
creating an open breach between it and the chief justice, and that
this statement was made to him in the hope that such open conflicts
of authority would be avoided in the future.
That the consuls should inform the chief justice that the treaty
powers substantially concurred in this construction of section 6 of
Article iv, although this concurrence does
not countenance any interference by him in the ordinary procedure or
conduct of cases before the land commission.
The U. S. Government is also of opinion that each of the treaty
powers should inform its land commissioner directly of the
instructions sent to the consular officers.
The suggestion made by the German Government that the construction
given by the chief justice to section 6 of Article iv of the general act should be applied
only to future cases, for the reason that the mode of procedure, up
to the present time, has been in conformity with the view held by
the commission, seems to the U. S. Government unnecessary, because,
even under that construction, or in that view, every case is to be
reported to the supreme court, to be registered or otherwise
disposed of by it. Moreover, the chief justice in his communication
of February 29, 1892, states that not a single report has yet been
sent to the supreme court by the commission, and that he had had,
therefore, no opportunity to deal with any land case. It appears
scarcely worth while to have different modes of procedure apply to
the same class of cases.
The Government of the United States agrees with the German Government
in approving the construction placed by the land commission on
section 8 of Article iv of the general
act, although it has received no information from its own officers
in regard to the matter; but it thinks that it would be better for
each of the treaty powers to instruct its consular representative at
Apia to inform the chief justice, who, under section 4 of Article
iii of the general act, has the final
decision of all questions arising under its provisions, that, in the
opinion of the consul’s government, the construction of section 8 of
Article iv adopted by the land commission
is the proper one, rather than, as suggested by the memorandum of
the German Government, to append a declaration to section 8 of
Article iv of the general act by which the
decision of the land commission would be definitely approved and
ratified.
The chief justice would, under the former circumstances, undoubtedly
affirm; the opinion of the land commission.
